Land and Environment Court New South Wales Medium Neutral Citation: Sfeir & Associates Investments Pty Ltd v Bayside Council [2017] NSWLEC 1626 Hearing dates: Conciliation conference on 24 October 2017 Date of orders: 06 November 2017 Decision date: 06 November 2017 Jurisdiction: Class 1 Before: Bish C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Sfeir & Associates Investments Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitors: Mr P Saab, Macquarie Lawyers (Applicant) Mr S Schneider, Houston Dearn O'Connor (Respondent) File Number(s): 2017/163714 Publication restriction: No Judgment 1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Plan Details Author Date Existing Conditions/Demolition Plan & Site Plan, Drawing No. 01, Issue E CAD3 25 October 2017 Site Context Plan, Drawing No. 02, Issue E CAD3 25 October 2017 Site Plan, Basement and Ground Floor Plan, Drawing No. 03, Issue E CAD3 25 October 2017 Streetscape Elevation, Drawing No. 04, Issue E CAD3 25 October 2017 Basement Level 2, Drawing No. 05, Issue E CAD3 25 October 2017 Basement Level 1, Drawing No. 06, Issue E CAD3 25 October 2017 Ground Floor Plan, Drawing No. 07, Issue E CAD3 25 October 2017 First Floor Plan, Drawing No. 08, Issue E CAD3 25 October 2017 Second Floor Plan, Drawing No. 09, Issue E CAD3 25 October 2017 Third Floor Plan, Drawing No. 10, Issue E CAD3 25 October 2017 Roof Plan, Drawing No. 11, Issue E CAD3 25 October 2017 Elevations, Drawing No. 12, Issue E CAD3 25 October 2017 Elevations, Drawing No. 13, Issue E CAD3 25 October 2017 Sections, Drawing No. 14, Issue E CAD3 25 October 2017 Sections, Drawing No. 15, Issue E CAD3 25 October 2017 Accessible Unit Floor Plan, Drawing No. 16, Issue E CAD3 25 October 2017 External Finishes Schedule, Drawing No. 17, Issue E CAD3 25 October 2017 Window & Door Schedule, Drawing No. 18, Issue E CAD3 25 October 2017 Sun Shadow Diagrams (June), Drawing No. 19, Issue E CAD3 25 October 2017 Sun Shadow Diagrams (Sept), Drawing No. 20, Issue E CAD3 25 October 2017 Cross Flow Ventilation, Drawing No. 21, Issue E CAD3 25 October 2017 GFA Calculation Plans, Drawing No. 22, Issue E CAD3 25 October 2017 Perspective Views, Drawing No. 23, Issue E CAD3 25 October 2017 Ramp Long Sections, Drawing No. 24, Issue E CAD3 25 October 2017 Landscape Intent, Drawing No. 1646-01, Issue B Jackie Amos Landscape Architect 25 October 2017 Ground Floor Landscape Plan, Drawing No. 1646-02, Issue C Jackie Amos Landscape Architect 25 October 2017 Basement Landscape Plan, Drawing No. 1646-03, Issue C Jackie Amos Landscape Architect 25 October 2017 Typical Cross Section Landscape, Drawing No. 1646-04, Issue A Jackie Amos Landscape Architect 21 March 2017 Proposed Plants, Drawing No. 1646-05, Issue B Jackie Amos Landscape Architect 25 October 2017 Proposed Plants, Drawing No. 1646-06, Issue A Jackie Amos Landscape Architect 25 October 2017 Stormwater Concept Plan Basement Level, Sheet 1 of 2, Drawing No. 101, Issue A, dated 10 February 2017 Australian Consulting Engineers 21 March 2017 Stormwater Concept Plan Basement Level, Sheet 2 of 2, Drawing No. 102, Issue A, dated 10 February 2017 Australian Consulting Engineers 21 March 2017 Stormwater Concept Plan Ground Level, Drawing No. 103, Issue A, dated 10 February 2017 Australian Consulting Engineers 21 March 2017 Catchment Plan, Drawing No. 104, Issue A, dated 10 January 2017 Australian Consulting Engineers 21 March 2017 OSD & WSUD Details, Sheet 1 of 2, Drawing No. 105, Issue A, dated 10 January 2017 Australian Consulting Engineers 21 March 2017 OSD & WSUD Details, Sheet 2 of 2, Drawing No. 106, Issue A, dated 10 January 2017 Australian Consulting Engineers 21 March 2017 Miscellaneous Details, Drawing No. 107, Issue A, dated 10 January 2017 Australian Consulting Engineers 21 March 2017 Documents Author Dated Statement of Environmental Effects, dated February 2017 Wales & Associates Pty Ltd 21 March 2017 Clause 4.6 Variation, dated October 2017 Wales & Associates Pty Ltd 25 October 2017 SEPP 65 Design Verification Statement, dated 31 January 2017 Boris Nedik Architect 21 March 2017 Building Code of Australia Compliance Assessment Report, Report No. 7191 Rev 01, dated February 2017 AED Group 21 March 2017 Access Report, Report No. 7191-Rev 01, dated February 2017 AED Group 21 March 2017 Traffic & Parking Impact Assessment, Report No. P2946.001R, dated 31 January 2017 Bitzios Consulting 21 March 2017 Survey Plan, Ref No. 58308001A, dated 20 May 2016 Hill & Blume Consulting Surveyors 21 March 2017 Arboricultural Impact Assessment, dated 19 January 2017 Advanced Treescape Consulting 21 March 2017 Waste Management Plan, dated 18 February 2017 Wales & Associates 21 March 2017 Geotechnical Investigation, Ref No. 13936/1-AA, dated 10 February 2017 Geotechnique Pty Ltd 21 March 2017 Quantity Survey Report, dated 12 January 2017 Construction Consultants 21 March 2017 1. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 as assessed and agreed within 28 days of the date of these orders. 2. The Applicant's written request submitted pursuant to clause 4.6(2) of the Parramatta Local Environmental Plan 2011 in relation to the contravention of the development standard for height in clause 4.6(2) of Botany Bay Local Environmental Plan 2013 is accepted, and the request to contravene the development standard in clause 4.6(2) is upheld 3. The appeal is upheld. 4. Development consent is granted to Development Application No. 2017/1036 for the demolition of existing dwellings and improvements and construction of residential flat building consisting of sixteen (16) units and basement car parking, subject to the conditions of consent annexed hereto and marked "A". ………………………. Commissioner Bish Annexure A (C) (297 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2018